Freeman v. Zara's Food Store, Inc.

204 So.3d 691

Joycelyn Freeman

v.Zara's Food Store, Inc., et al

NO. 2016-CA-0445

Court of Appeal of Louisiana, Fourth Circuit.

November 2, 2016

Rodney Kelp Littlefield, LITTLEFIELD LAW, LLC, 639 Loyola Avenue, Suite 1820, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLEE

Susanne W. Jernigan, THE JERNIGAN LAW FIRM, L.L.C., 829 Baronne Street, New Orleans, LA 70113, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Rosemary Ledet )

Judge Rosemary Ledet

This is a suit for damages. The plaintiff, Joycelyn Freeman, commenced this suit against her former boss, Joseph Zara, and employer, Zara's Food Store, Inc. (collectively "Defendants"). Ms. Freeman alleged an on-the-job sexual battery, sexual harassment, and retaliatory firing.¹ From the trial court's amended August 27, 2015 judgment in Ms. Freeman's favor, Defendants appeal. For the reasons that follow, we vacate both the trial court's amended August 27, 2015 judgment and its May 28, 2014 judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 1989, Ms. Freeman began working as a cashier at Zara's, a supermarket in New Orleans, Louisiana. Following Hurricane Katrina, which struck the New Orleans area in August 2005, Ms. Freeman evacuated to Albuquerque, New Mexico. In June 2011, she returned to New Orleans. During the following month, she returned to work at Zara's. She continued to work at Zara's until October 2012. According to Ms. Freeman, Mr. Zara was the owner and manager of Zara's and her boss during the entire eighteen years she worked at Zara's.

The incident in question occurred on October 5, 2012, while Ms. Freeman was at the cash register working. When she bent over to get something in the drawer beneath the cash register, she felt Mr. Zara swipe her from behind. By swipe her, she clarified that she meant "[f]rom my vagina to my butt, swiped me." In response, she "popped"—punched—Mr. Zara as he walked quickly away. Both Mr. Zara and Ms. Freeman called the police. Mr. Zara was cited and charged with battery. He eventually pled guilty and was sentenced to a thirty-day suspended sentence. Following the incident, Ms. Freeman initially was suspended for three days. Ultimately, she was fired.

On August 6, 2013, Ms. Freeman filed suit in the United States District Court for the Eastern District of Louisiana against Mr. Zara and Zara's.² On February 19, 2014, the federal court issued reasons for judgment and an order reflecting the court's intent to dismiss only Ms. Freeman's employment discrimination claims with prejudice; the federal court's February 19, 2014 ruling stated as follows:

IT IS ORDERED that Plaintiff's [Title VII of the Civil Rights Act of 1964 ("TitleVII") ] Title VII claims and [Louisiana Employment Discrimination Law ("LEDL") ] LEDL claim are DISMISSED WITH PREJUDICE .³

IT IS FURTHER ORDERED that Plaintiff's remaining state law claims are DISMISSED WITHOUT PREJUDICE .

Contrary to its earlier ruling, the federal court rendered judgment on February 24, 2014 dismissing all Ms. Freeman's claim; the federal court's judgment stated as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of defendants, Zara's Food Store, Inc. and Joseph Zara and against plaintiff, Joycelyn Freeman, dismissing the plaintiff's suit with prejudice.

On February 25, 2014, the day after the federal court rendered its judgment dismissing the matter in its entirety, Ms. Freeman filed the instant suit in state court.⁴ Defendants failed to answer the petition. On May 21, 2014, Ms. Freeman filed a Motion for Preliminary Default, which was entered. On May 28, 2014, a hearing was held before the duty judge to confirm the default judgment. At that hearing, Ms. Freeman was the sole witness. At the end of the hearing, the duty judge signed the following judgment:

After considering the testimony of Joycelyn Freeman and all the evidence and facts presented and for good cause shown:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiff, Joycelyn Freeman, in the amount of ninety two thousand one hundred ninety seven and 50/100 $92,197.50) DOLLARS with interest from the date of judicial demand.

At the duty judge's request,⁵ the names and addresses of both defendants were typed below the trial court judge's signature on the bottom left corner of the judgment as follows:

Joseph P. Zara

1325 Nursery Place

Metairie, LA 70005

Zara's Food Store, Inc.

Through its registered agent

Joseph P. Zara

Metairie, LA 70005

On that same day, Ms. Freeman recorded the May 28, 2014 judgment with the Orleans Parish Mortgage and Conveyance Office against any property owned by Defendants. The mortgage inscription relating to Mr. Zara's property, a copy of which is contained in the record, reads as follows:

MIN 1159301—Judgment against Joseph Zara in favor of Joycelyn Freeman in the amount of $92,197.53, before Rodney Kelp Littlefield, Notary Public, dated 5/28/14, recorded 5/28/14, N.A. # 2014-19901, CDC # 2014-1918.

On June 30, 2014, Defendants filed a "Motion to Dismiss Based upon the Peremptory Exceptions of Prescription and Res Judicata." In support, Defendants relied on the federal district court's February 24, 2014 judgment, which dismissed Ms. Freeman's federal court suit with prejudice. Based on that judgment, Defendants contended that Ms. Freeman's state court suit was barred by both res judicata and prescription. Defendants further contended that their peremptory exceptions were timely filed because "neither the judgment issued by the trial court nor the transcript therefrom indicate[s] that there is a judgment lodged against any defendant."⁶ Opposing the Motion to Dismiss, Ms. Freeman contended that the May 28, 2014 judgment was a final judgment and that Defendants' exceptions thus were untimely filed.

On August 11, 2014, the trial court, finding merit to Defendants' exceptions, rendered judgment granting Defendants' Motion to Dismiss. On August 14, 2014, Defendants filed a Petition for Writ of Mandamus seeking an order that the May 28, 2014 judgment be removed from the mortgage records. In their Petition for Writ of Mandamus, Defendants cited the trial court's August 11, 2014 judgment granting their Motion to Dismiss.

Meanwhile, Ms. Freeman returned to federal court and filed a Motion to Amend Judgment. On August 4, 2014, the federal court issued an amended judgment.⁷ In its amended judgment, the federal court ruled in Defendants' favor dismissing with prejudice Ms. Freeman's federal Title VII claims and state LEDL claims; however, the federal court "dismissed without prejudice Plaintiff's remaining state law claims."

On August 25, 2014, Ms. Freeman filed a Motion for New Trial from the trial court's ruling dismissing the case. In support, she attached the federal court's August 4, 2014 amended judgment. On September 30, 2014, the trial court granted Ms. Freeman's Motion for New Trial and, reversing its prior ruling, denied Defendants' Exceptions of Prescription and Res Judicata. Also, on September 30, 2014, the trial court denied Defendants' Petition for Writ of Mandamus. In its reasons for judgment, the trial court stated as follows:

This Court recently granted a Motion for New Trial filed by plaintiffs regarding Exceptions of Prescription and Res Judicata that were previously filed by defendants and granted by this Court. The Motion for New Trial reverses the granting of these Exceptions. It is this Court's opinion that the Granting of the Motion for New Trial renders the Petition for Writ of Mandamus premature at this time.

From the trial court's September 30, 2014 judgment granting Ms. Freeman's Motion for New Trial, Defendants filed a writ application with this court, which was denied. Freeman v. Joseph Zara, et al. , 14–1330 (La. App. 4 Cir. 12/1/14) (unpub. ).

On April 23, 2015, Ms. Freeman filed a Motion to Amend the May 28, 2014 judgment to clarify that it was rendered against Mr. Zara and Zara's. Defendants opposed the Motion to Amend. At the hearing on the Motion to Amend, the trial court orally reasoned that she was merely correcting the May 28, 2014 judgment to reflect the intent of the duty judge who rendered it. The trial court noted that, in reading the transcript of the default judgment hearing, when the duty judge instructed Ms. Freeman's counsel to put Defendants' names on the judgment, it was clear that the duty judge's intent was to cast Defendants in judgment. The transcript from the August 7, 2015 hearing on the Motion to Amend, reflects the following colloquy between Defendants' counsel and the trial court judge on this issue:

MS. JERNIGAN [DEFENDANTS' COUNSEL]:

In the interim, amending this judgment to name the parties when they were not named in the judgment itself, nor in the proceedings was there any fault allocated, nor—they were not alleged to be joint tortfeasors. They're not liable in solido. Mr. Littlefield [Ms. Freeman's counsel] asserted vicarious liability because Mr. Zara was an employee of the grocery. And, therefore, he was not opposed. Fault could have been allocated any way it was, but there was no fault allocated any way it was, but there was no fault allocated. And to cast them both in judgment would be a substantive amendment.

THE COURT:

I read the transcript. And it is clear that the [duty] judge—who did not prepare the judgment, and she asked one of the attorneys to prepare it—

MS. JERNIGAN:

That would be Mr. Littlefield [Ms. Freeman's counsel] because there was no other attorney.

THE COURT:

Yes. But she [the duty judge] said—she made reference to both Zara and Zara's Food Store, and she instructed counsel for Ms. Freeman to put them both in.

MS. JERNIGAN:

Your Honor, I believe she said put their names and addresses so they can receive notice of judgment. She didn't say anything about casting them in judgment.

THE COURT:

Well, I think it's clear from the transcript that that was the intent of her order, so I'm going to grant the motion to amend.

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